Incar Tanzania Limited vs Firoz O. Samaa (Civil Case No. 335 of 1998) [2000] TZHC 200 (18 October 2000)

--' \I •. I, ./ ,) MSOMI,JK: IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY) AT DARES SALAAM CIVIL CASE N0.335 OF 1998 INCAR TANZANIA LIMITED .... PLAINTIFFS VERSUS FIROZ 0. SAMAA.......... DEFENDANT RULING This ~ling is on the two applications filed by the applicant. The first application is for stay of execution of the ex parte judgment and the second one is for setting aside the said ex parte judgment. For obvious reason I will start with the second application. Respondent sued the applicant for breach of terms of contract of sale. Service of the copy of the plaint was duly effected on the applicant. After the applicant had failed to file his defence and made no appearance on the day when the case was scheduled for orders, the said ex parte judgment was entered under the provisions of Order VIII rule 14(1) of the Civil Procedure Code. The applicant deponed an affidavit in support of the application. Among other matters, the applicant contends that after being served with summons, ~e ,

) went to the office of the counsel of the respondent to negotiate for settlement. At the said office he met the clerk of the counsel of the respondent who advised him not to go to the court on the scheduled date and that his office would communicate to him later on concerning the case. However to his utter surprise he was later on served with notice to show cause why he should not be committed to civil prison in execution of the decree against him. It is notable that respondent has not filed counter affidavit to controvert the applicant's contention. Instead there is only the submission of his counsel who among other things, contends that what the applicant said in his affidavit is not true. With respect this is not the proper way a sworn evidence like an affidavit can be controverted. Whereas the applicant could be cross examined on his testimony, the same cannot be done to the counsel of the respondent in respect of her submission. Submissions of counsels are supposed to be on issues of law and elaboration of issues of fact testified in evidence. However, matters of fact testified either orally or by affidavit cannot be controverted by submissions from the bar. Hence in the absence of counter affidavit in the present case, the contention of the applicant remains uncontroverted. In other words it is true that applicant's failure to appear in court on the scheduled date was influenced by the promise given to him by the clerk of the counsel of the respondent. This is sufficient explanation. For this reason the ex parte judgment is hereby set aside

,. ' · . with costs. superfluous. 18/10/2000 No finding 1s macte on the application for stay because it is r-w~ ~sumi JAJI KJONGOZI For the applicant: Mrs Tenga/Dr Lamwai t_t_j For the respondent: Mrs Tenga. ' l \ )